Decision
Mr. P and Raheenleagh Power DAC (RPDAC)
From Office of the Commissioner for Environmental Information (OCEI)
Case number: CEI/17/0012
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: CEI/17/0012
Published on
Decision of the Commissioner for Environmental Information on an appeal made under article 12(5) of the European Communities
(Access to Information on the Environment) Regulations 2007 to 2014 (the AIE Regulations)
Raheenleagh Wind Farm
This case concerns a wind farm located at Raheenleagh in County Wicklow. The website https://raheenleaghwindfarm.ie/ says that;
Raheenleagh is a wind energy project owned in equal partnership by Coillte and ESB. It is located within the Raheenleagh forest, Ballinvalley, County Wicklow and it became operational on the 20th September 2016.
In a related AIE appeal case, ESB told my investigator that Raheenleagh wind farm is owned by RPDAC, which is itself “50/50 owned” by Coillte Teoranta and ESB Wind Development Ltd. It said that ESB Wind Development Ltd is 100% owned by ESB Financial Enterprises Ltd, and ESB Financial Enterprises Ltd is in turn 100% owned by ESB. ESB also explained that the day to day operation of the wind farm is contracted out by RPDAC to ESB Wind Development Ltd.
In the current case RPDAC confirmed to my investigator that it sells the electricity it produces to ESB Independent Energy Ltd, which in turn sells it to domestic and business customers while trading as “Electric Ireland”.
The AIE request
On Sunday 18 December 2016 the appellant sent an AIE request to RPDAC and gave reasons why he considered RPDAC to be a public authority within the meaning of the AIE Regulations. When he was not notified of any decision on his request, he asked RPDAC to conduct an internal review. RPDAC responded by stating that it is not a public authority within the meaning of the AIE Regulations and that those Regulations, therefore, do not apply to it. RPDAC addressed each of the three categories of public authority that are described in the AIE Regulations and explained why it did not believe that it fell into any of those categories.
The appeal
The appellant appealed to my Office on 20 February 2017.
Article 12(3) of the AIE Regulations provides a right of appeal to my Office where a decision by a public authority has been affirmed under article 11. Article 11 deals with internal reviews by public authorities of their decisions on AIE requests. Article 11(5)(a) provides that I may review refusal decisions made "on the grounds that the body or person concerned contends that the body or person is not a public authority". RPDAC contends that it is not a public authority within the meaning of the Regulations. This review is therefore limited to the question of whether RPDAC is or is not a public authority within the meaning of the AIE Regulations
In conducting my review I took account of the submissions made by the appellant and RPDAC. I had regard to: the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations (the Minister’s Guidance); Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based; the 1998 United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention); and The Aarhus Convention—An Implementation Guide (Second edition, June 2014).
Relevant AIE provisions
Article 3(1) of the AIE Regulations provides that “public authority” means, subject to sub-article (2)—
(a) government or other public administration, including public advisory bodies, at national, regional or local level,
(b) any natural or legal person performing public administrative functions under national law, including specific duties, activities or services in relation to the environment, and
(c) any natural or legal person having public responsibilities or functions, or providing public services, relating to the environment under the control of a body or person falling within paragraph (a) or (b),
and includes—
(i) a Minister of the Government,
(ii) the Commissioners of Public Works in Ireland,
(iii) a local authority for the purposes of the Local Government Act 2001 (No. 37 of 2001),
(iv) a harbour authority within the meaning of the Harbours Act 1946 (No. 9 of 1946),
(v) the Health Service Executive established under the Health Act 2004 (No. 42 of 2004),
(vi) a board or other body (but not including a company under the Companies Acts) established by or under statute,
(vii) a company under the Companies Acts, in which all the shares are held—
(I) by or on behalf of a Minister of the Government,
(II) by directors appointed by a Minister of the Government,
(III) by a board or other body within the meaning of paragraph (vi), or
(IV) by a company to which subparagraph (I) or (II) applies, having public administrative functions and responsibilities, and possessing environmental information;
Article 3(2) provides that “Notwithstanding anything in sub-article (1), ‘public authority’ does not include any body when acting in a judicial or legislative capacity.” This provision is not relevant to the current case.
In National Asset Management Agency v Commissioner for Environmental Information [2015] IESC 51 (NAMA), O'Donnell J. considered the significance of that part of the definition which follows the words "and includes", and concluded that "it was not here intended to operate as extending the meaning of the prior paragraphs", i.e. paragraphs (a), (b) and (c). There are therefore just three categories of ‘public authority’ within the meaning of the AIE Regulations. Since they are listed in article 3 of those Regulations in paragraphs (a), (b) and (c), I will refer to them as public authorities of types (a), (b) and (c).
The appellant’s position
In his AIE request, the appellant made several points about the ownership of RPDAC. The ownership situation is set out in the ‘Background’ section to this decision and is not in dispute.
The appellant said that RPDAC is listed as a ‘public body’ by the Central Statistics Office (CSO) in Methodological Note 2016 Register of Public Sector Bodies in Ireland (dated October 2017 and published by the CSO on its website). He said that RPDAC is a Special Purpose Vehicle of ESB Finance Ltd, ESB Windfarm Developments Ltd and Coillte and would fall into the category of being an ‘agency’ to these bodies, “all of which are public authorities clearly falling into (c) of the [AIE] Regulations”. He added that:
There is much case law in this space with one core example back in 1939 with Smith, Stone & Knight v Birmingham Corp. Answering the six facts raised in this case would clearly show that RPDAC is an agency of its parents. There is also the jurisprudence of the CJEU – case C-172/12 P, El du Pont de Nemours and others v Commission and case C-179/12 P, Dow Chemical Company v Commission, where parental responsibility is clearly outlined. This was in the competition space but it has relevance and implications in the AIE space. In summary, RPDAC is a body which clearly falls into the definition of either [type] (b) or (c) of the AIE Regulations.
In his appeal to my Office, he said:
It is my opinion that any ‘legal person’ owned by a public authority in itself has to also be a public authority for the purposes of AIE. It would be common in business that if a shareholder holds more than 50% or has voting rights which allows them to exert their will over a legal person then they would ‘control’ that legal person.
In a submission, he presented an argument that may be summarised as follows:
Development consisting of the carrying out by any local authority or statutory undertaker of any works for the purpose of inspecting, repairing, renewing, altering or removing any sewers, mains, pipes, cables, overhead wires, or other apparatus, including the excavation of any street or other land for that purpose.
He also submitted that subsection 254(1) of the Act of 2000 provides that:
Subject to subsection (2), a person shall not erect, construct, place or maintain— (e) a cable, wire or pipeline, overground electronic communications infrastructure and any associated physical infrastructure, on, under, over or along a public road save in accordance with a licence granted by a planning authority under this section.
Subsection 254(2)(c) provides that subsection (1) shall not apply to the erection, construction, placing or maintenance under a public road of a cable, wire or pipeline by a statutory undertaker.
Therefore, he argued, the Act of 2000 empowers statutory undertakers to “excavate streets or other land”. He argued that this special power “puts RPDAC into the second class of public authority”, i.e. type (b) “as it allows them to do all sorts of things under that exemption which are not available to a normal private person”.
He argued that this view is supported by the judgment of the High Court in Daly -v- Kilronan Wind Farm Ltd [2017] IEHC 308 (Daly). He said that this judgment expanded on the special powers that statutory undertakers have at their disposal, “having been granted an ‘instrument’ by the Commission for Energy Regulation [now the Commission for Regulation of Utilities – CRU]. In that judgment, the Court accepted that the windfarm involved in that case was a “statutory undertaker” as defined by section 2(1)(b) of the Act of 2000, as it was “a person, for the time being, authorised by or under any enactment or instrument under an enactment to provide or carry out works for the provision of electricity”. The Court also accepted that the windfarm company involved held “a licence or ‘instrument’, to use the language of the Electricity Regulation Act 1999 (the Act of 1999), from [what is now the CRU] pursuant to section 16 of” the same Act. The appellant argued that a windfarm company therefore benefits by virtue of receiving this special ‘instrument’ from [CRU]. The ‘instrument’ referred to by the Court was a licence authorising the construction or reconstruction of a generating station. He said that the CRU ‘instrument’ allows RPDAC to far exceed what it would be permitted to do under private law, to include interfering with the property rights of adjacent property owners without compensation. He argued that this power is one “which only the State could make use of”, thus making RPDAC a type (b) public authority.
He submitted that “section 48, along with other sections of the Electricity Regulation Act 1999 vests all sorts of powers which are very specific to those who are granted ‘statutory undertaker’ status and ‘authorisation’ status via the” [CRU].
The appellant submitted that the above arguments mean that I may have erred in law when I decided in case CEI/16/0007 that Wexwind Ltd is not a public authority within the meaning of the AIE Regulations. He argued that the expression ‘statutory undertaker’ has “a very significant legislative definition, having been defined in the Electricity Regulation Act 1999 and the Act of 2000 and used across in multiple legislative Acts and Statutory Instruments”. He cited references to statutory undertakers in other legislation, and listed, by way of example, the Finance Act 2006, the Taxes Consolidation Act of 1997 and four statutory instruments.
The appellant asked me to consider “the full scope of powers which an authorisation from [CRU] vests in a body… in this case authorisation to construct and authorisation to generate electricity”. He said he believes that “there is sufficient evidence to show that this moves RPDAC” from a type (c) public authority to a type (b) public authority.
The appellant also submitted an argument in support of his belief that RPDAC is an ‘emanation of the State’. He asked me, when coming to a decision, to refer to the CJEU decision on case C-413/15, and in particular to para 120 of the Advocate General’s Opinion on that case. That Opinion proposed that certain criteria should be taken into account when a court is determining if an entity is an ‘emanation of the State’. The appellant argued that subsidiary companies, such as RPDAC, “can be emanations of the State and, for that reason, can be public authorities for the purposes of the AIE Regulations”.
The appellant made other submissions intended to apply to both this case and multiple other appeal cases taken by him. Some of the points he made have been summarised above. Other points are not relevant to this review and are therefore not mentioned here. For example, he referred to articles 10(1) and 10(5) of the AIE Regulations, neither of which have any bearing on whether RPDAC is a public authority.
RPDAC’s position
RPDAC made a detailed legal submission to my Office. I have not repeated it here in full, but I have considered it in full. RPDAC maintained that it is not a public authority within the meaning of the AIE Regulations because it does not fall within the meaning of any of the three types of public authority provided by the AIE Regulations.
Type (a): “government or other public administration, including public advisory bodies, at national, regional or local level”.
RPDAC stated that it is “clearly not a government or public administration”.
Type (b): “any natural or legal person performing public administrative functions under national law, including specific duties, activities or services in relation to the environment”.
RPDAC submitted that it is not vested with “special powers” as considered by the CJEU in its judgment in case C-279/12 (Fish Legal & Emily Shirley v. Information Commissioner, United Utilities Water Plc, Yorkshire Water and Services Ltd and Southern Water Services Ltd) (Fish Legal) and therefore it does not undertake public administrative functions within the meaning of the AIE Regulations. It further submitted that this view is consistent with my decision in case CEI/16/0007 (Mr. L and Wexwind Limited).
Type (c): “any natural or legal person having public responsibilities or functions, or providing public services, relating to the environment under the control of a body or person falling within paragraph (a) or (b)”.
RPDAC submitted that “the CJEU has not yet considered this element of the definition of public authority”. It stated that, in order to fall within this type of public authority, three requirements would have to be met: RPDAC would have to be a natural or legal person having public responsibilities or functions or providing public services; those responsibilities, functions or services would have to relate to the environment; and RPDAC would have to be under the control of a body or person falling within categories (a) or (b). RPDAC denied that it meets any of these requirements. It maintained that “post deregulation of the electricity market, electricity generation is not a public service and does not involve the exercise of public responsibilities or functions”.
I identified 4 arguments in the submissions made by the appellant. He argued that RPDAC is a public authority because:
1. It is a public sector body and an emanation of the State.
2. It is an agent (as a Special Purpose Vehicle) for ESB Finance Ltd, ESB Windfarm Developments Ltd and Coillte, all of which (he says) are public authorities clearly falling into (c) of the AIE Regulations.
3. It is owned by a public authority.
4. It has special powers on account of its status as a statutory undertaker (a status given to it by a licence/authorisation granted by CRU).
I proceeded to consider whether RPDAC is a public authority of types (a), (b) or (c), in that order, while taking account of the parties’ arguments. In doing so, I took account of the judgment of the High Court in NAMA, in which O'Donnell J. noted that the definition of ‘public authority’ in the AIE Regulations “reproduces word for word the provisions of” the AIE Directive and therefore, effectively, the Aarhus Convention and went on to say that:
In order to understand what the statutory instrument [i.e. the AIE Regulations] means and does in this case, it is necessary, perhaps first, to understand exactly what the [AIE] Directive does and means.
The Court stated that “the definition section of the [AIE] Directive is unclear”, but noted that the judgment of the Court of Justice of the European Union (CJEU) in Fish Legal & Emily Shirley v. Information Commissioner, United Utilities Water Plc, Yorkshire Water and Services Ltd and Southern Water Services Ltd) (Fish Legal) “provides an authoritative interpretation of the Directive, and moreover does so in the context of a common law system”. Accordingly, the Court followed Fish Legal. In this review, I endeavoured to do likewise where appropriate.
Type (a) public authority (as per article 2(2)(a) of the AIE Directive)
A type (a) public authority is a “government or other public administration, including public advisory bodies, at national, regional or local level”. RPDAC submitted that it is “clearly” not a public authority of this type. While the appellant argued that RPDAC is a public sector body, an emanation of the State, a special purpose vehicle or agent of one or more public authorities, and is owned by a public authority, he did not argue that RPDAC is a public authority of type (a). I nonetheless considered this issue.
In NAMA, O'Donnell J. said that:
The concept of “government at national, regional and other level” … is reasonably clear, although there may perhaps be some debate at the margins as to what is captured by that definition.
In Fish Legal, the CJEU opined (at para. 51) that:
Entities which, organically, are administrative authorities, namely those which form part of the public administration or the executive of the State at whatever level, are public authorities for the purposes of article 2(2)(a) of Directive 2003/4. This first category includes all legal persons governed by public law which have been set up by the State and which it alone can decide to dissolve.
I am satisfied that while RPDAC clearly has a relationship with more than one public authority, it does not fall within ‘the margins of the meaning of government’.
I acknowledge that, as the appellant submitted, RPDAC is listed by the CSO as a “public sector body”, or more specifically, as a commercial public sector body. I note that the CSO compiled its list of public sector bodies for the purpose of reporting Ireland’s General Government Deficit/Balance, Debt, and other Government Finance Statistics to the European Union. I note that while the appellant argued that RPDAC is an emanation of the State, a special purpose vehicle or agent of one or more public authorities, and is owned by a public authority, he did not argue that this meant that it is a ‘public administration’. In my considered view, RPDAC could be not properly be described as a “public administration”. I am therefore satisfied that RPDAC is not a public authority of type (a).
Type (b) public authority (as per article 2(2)(b) of the AIE Directive)
A type (b) public authority is “any natural or legal person performing public administrative functions under national law, including specific duties, activities or services in relation to the environment”. Clearly RPDAC is a legal person. I considered whether RPDAC, notwithstanding that it is not a “public administration”, performs one or more public administrative functions under national law. The CJEU held in Fish Legal, (at para. 52) that this type of public authority (as defined in article 2(2)(b) of the AIE Directive):
Concerns administrative authorities defined in functional terms, namely entities, be they legal persons governed by public law or by private law, which are entrusted, under the legal regime which is applicable to them, with the performance of services of public interest, inter alia in the environmental field, and which are, for this purpose, vested with special powers beyond those which result from the normal rules applicable in relations between persons governed by private law.”
It is arguably the case that RPDAC, in being licensed to generate renewable energy, has been entrusted by law (or, at least, by a licence lawfully granted) with the performance of a service of public interest. I therefore considered whether RPDAC has been vested with special powers. In NAMA, the Supreme Court held that:
Applying the [Fish Legal] test it is clear that NAMA is indeed a public authority exercising public administrative functions. Although like the water companies in Fish Legal, it is obliged to act commercially, it is undoubtedly vested with special powers well beyond those which result from the normal rules applicable in relations between persons governed by private law. If anything, the case is clearer here. The water companies in Fish Legal were companies established in private law whereas NAMA is established pursuant to a statute which confers upon it substantial powers of compulsory acquisition, of enforcement, to apply to the High Court to appoint a receiver and to set aside dispositions. The [NAMA] Act also restricts or excludes certain remedies against NAMA.
I note that RPDAC, like the water companies in Fish Legal, is a company established in private law and it acts commercially. Whether it has special powers is less obvious. Advocate General Sharpston, in her Opinion on case C-413/15, noted that the expression ‘special powers’ “has still not acquired a clear, autonomous EU law meaning”. In Fish Legal, the water company’s licence gave it significant powers, including powers of compulsory purchase, power to make byelaws and the power to cut off the supply of water. While the CJEU did not make any finding as to whether those powers are “special powers” for the purposes of classifying the water company as a public authority of type (b), the Supreme Court in NAMA was satisfied that NAMA’s statutory powers, which included “substantial powers of compulsory acquisition”, amounted to special powers.
I note that in both Fish Legal and NAMA, the cited powers included powers over other people or their property. The appellant argued that RPDAC has special powers because it is has the power to “excavate streets or other land” in the course of carrying out exempted development. He said that powers given to RPDAC allow the company “to far exceed what they would be permitted to do under private law, to include interfering with the property rights of adjacent property owners without compensation”. I carefully considered this claim.
The appellant submitted that I agreed in my decision on case CEI/16/0007 that Wexwind Ltd, a private wind farm company, was a statutory undertaker within the meaning of the Act of 2000. In fact, I did not express any view on that matter in that decision, but simply cited a finding to that effect by An Bord Pleanála. I note that the High Court accepted in Daly that the windfarm company involved in that case was a “statutory undertaker” as defined by section 2(1)(b) of the Act of 2000 as it was “a person, for the time being, authorised by or under any enactment or instrument under an enactment to provide or carry out works for the provision of gas, electricity or telecommunications services”. Applying this to the present case, I accept that RPDAC is a statutory undertaker within the meaning of the Act of 2000. In response to questions put by my investigator, RPDAC accepts that this is the case. RPDAC denies, however, that it a statutory undertaker within the meaning of the Electricity (Supply) Act 1927. It argued that, since the “opening of the generation and supply markets to competition from 2000 and the establishment of a new regime under the 1999 Act whereby CRU authorises and licences generation and supply activities, the provisions of the 1927 Act in respect of statutory undertakers are no longer relevant”.
In case CEI/16/0007 I also considered whether the windfarm in question was an “electricity undertaking” as defined by the Act of 1999. Section 2(1) of that Act provides that “electricity undertaking” means:
Any person engaged in generation, transmission, distribution or supply of electricity, including any holder of a licence or authorisation under this Act, or any person who has been granted a permit under section 37 of the Principal Act [i.e. the Electricity (Supply) Act 1927].
The Act of 1999 empowers CRU to grant licences to generate electricity and CRU has granted such a licence to RPDAC (see Generator Licences issued ). The Act defines the word “generate” as meaning “to produce electricity”. The Act also empowers CRU to grant “authorisations” to construct or reconstruct generating stations. CRU has granted such an authorisation to RPDAC (see Authorisations to Construct ). RPDAC confirmed to my investigator that it accepts that it is an electricity undertaking and I am satisfied that it is.
The question then arises as to whether RPDAC’s status as both a statutory undertaker and an electricity undertaking vests it with special powers. The appellant argued that RPDAC is vested with the power to carry out exempted development and that this is a special power. In my decision on case CEI/16/0007, I did not find that a windfarm company’s freedom to carry out certain exempted development amounted to it having special power. However, I am willing to reconsider that matter in this case in relation to RPDAC. In my earlier decision, I said:
In the broadest sense, the classification of certain works as exempted development is a power, in that it allows an electrical undertaking to do something (i.e. carry out works) without the need for prior approval by the State (albeit subject to certain statutory conditions).
The appellant cited the judgment in Daly in support of this view that RPDAC has been given a special power to interfere with the property rights of adjacent property owners without compensation. I do not see that Daly provides authority for that proposition. The judgment in Daly is consistent with the proposition that exemption from the need to obtain planning permission does not relieve a person wishing to benefit from such an exemption of the need to either obtain the consent of the owner of the site where the works would take place or, in the absence of such consent, to identify some other legal authority which would obviate the need for such consent.
In his submission, the appellant referred to section 48 of the Act of 1999. That section provides that:
The power to lay electric lines conferred on the [ESB] by section 51 and section
52(1) of the Principal Act may, with the consent of the Commission, also be exercised
by the holder of an authorisation or the holder of a direct line permission under section 37 and the said section 51 and 52(1) shall apply to the holder of an authorisation or the holder of a direct line permission under the said section 37 in like manner as they apply to the [ESB].
In other words, while sections 51 and 52 of the Electricity Supply Act 1927 conferred powers on ESB, the Act of 1999 empowers CRU to allow holders of an authorisation to exercise those powers.
In an effort to distill and therefore clarify the appellant’s wide-ranging argument in relation to special powers, my investigator asked the appellant to list the special powers which he believes REPDAC enjoys. In response, he listed 3 powers: the power to undertake exempted development; the power to act on wayleaves issued by ESB; and the power to enter other people’s properties for the purpose of connecting up supplies and running pylons etc. In a follow-up email he also referred to powers given to RPDAC by sections 40 and 47 of the Act of 1927, without being more specific. I considered each of these claims in turn.
The power to undertake exempted development
The appellant said that, despite having no specific evidence, he believes that RPDAC undertook exempted development on a public road without regard to the ownership rights of the adjacent landowners to the centre of the road, where landowner’s permission “should probably be sought”.
As regards, exempted development, I can see that legislative power is required in order to declare certain developments to be exempt from the requirement for planning permission. Clearly RPDAC does not have such a power. As for exercising a freedom to undertake exempted development, I do not regard that as being the equivalent to the exercising of a “special power”. It seems to me that any person with the requisite interest in lands can carry out works specified to be exempted development under the Act of 2000.
In relation to the appellant’s suspicion that RPDAC carried out works in circumstances where landowner’s permission should ‘probably have been sought’, I note that this is not an argument that RPDAC has a special power. On the contrary, it is the expression of a suspicion that RPDAC did something that it did not have the power to do. I have absolutely no evidence that RPDAC did something that it was not entitled to do. In any event, any such evidence, if it existed, could not be relevant to my review.
The power to act on wayleaves issued by ESB and to enter other people’s properties for the purpose of connecting up supplies and running pylons etc.
RPDAC submitted that, as the holder of an authorisation to construct a generation station, it had the right to apply to the CRU for consent to exercise certain wayleaving and entry powers in order to lay or place an electricity line. RPDAC denies that this is a special power and confirmed that it had never applied for, or exercised, any such power, either in the construction of the windfarm or the connection of the windfarm to the grid. I am satisfied that the “power” in this instance lay at all times with CRU and not with RPDAC. If RPDAC could also act on wayleaves issued by ESB (and it has not been established that it could), I would regard the power in such cases to vest in ESB and not in RPDAC.
As for the alleged undertaking of works on public roads without regard to the ownership rights of the adjacent landowners (which can extend to the centre of the road), there are two aspects to this: the question of a power to “break” or dig up roads and, if RPDAC has such a power, whether that power is subject to a requirement to obtain permission from adjacent landowners.
RPDAC submitted that the holder of an authorisation to construct a generation station may apply to the CRU for consent to break up roads in order to lay or place an electricity line. It submitted that this is not a special power that is enjoyed by RPDAC as the power lies at all times with CRU. I accept this position. RPDAC has also given my Office an assurance that it has never applied to CRU for such a consent and I have no evidence to the contrary. Having said that, it would be sufficient for my present purposes to find that RPDAC enjoys a special power: whether the company ever exercised such a power would be irrelevant.
As I am not persuaded that RPDAC has a power to break up roads, the question of landowner’s permission does not fall to be considered.
Section 40 of the Electricity Supply Act 1927
This section provides ESB with the power to take control of “the undertaking of an authorised undertaker”. It does not grant any powers to RPDAC.
Section 47 of the Electricity Supply Act 1927
This section empowers ESB to empower “any authorised undertaker” to, amongst other things, acquire compulsorily any land or acquire or use compulsorily any easement which may be necessary for the establishment or extension of a generating station or the transformation, transmission or distribution of electricity. Section 1 of that Act defines “authorised undertaker” as:
a person who is for the time being authorised by any local or personal Act of the United Kingdom Parliament or any private Act of the Oireachtas or any provisional or other order made under statutory authority (whether before or after the establishment of Saorstát Eireann) or by special order of the Board made under this Act to generate, distribute, and supply or to distribute and supply electricity to the public in any specified area and who by virtue of such Act or Order has for the time being the exclusive right of so supplying electricity in such area;
I am satisfied that RPDAC has not been given the exclusive right to supply electricity to any area. I am therefore satisfied, even on that basis alone, that RPDAC is not an authorized undertaker within the meaning of the Act of 1927. Accordingly, I am satisfied that RPDAC does not enjoy any special power by virtue of section 47 of the Act of 1927.
RPDAC said that, while any holder of an authorisation to construct a generation station may apply to CRU for an order of compulsory purchase, it had never done so and the ‘power’ to make such an order vests with CRU. I accept this position.
Other arguments of ‘special powers’
I considered the appellant’s other arguments: that RPDAC is a public sector body and an emanation of the State; that it is a special purpose vehicle or agent of one or more public authorities; that it is owned by a public authority. No new argument of special powers was made in relation to these arguments.
Conclusion on whether RPDAC is a public authority of type (b)
As I am not persuaded that RPDAC enjoys any special power, I must find that it is not a public authority of type (b).
Type (c) public authority (as per article 2(2)(c) of the AIE Directive)
A type (c) public authority is “any natural or legal person having public responsibilities or functions, or providing public services, relating to the environment under the control of a body or person falling within paragraph (a) or (b)”. I am unaware of any legal authority on how this specific provision is to be interpreted.
Clearly, RPDAC is a legal person.
While the appellant argued that RPDAC is a public sector body, an emanation of the State, a special purpose vehicle or agent of one or more public authorities and that it is owned by a public authority, he did not argue that it has public responsibilities or functions. I have no reason to regard RPDAC as having any “public responsibilities or functions”. The real question, in my view, is whether it provides a public service within the meaning of the AIE Regulations.
In my decision in case CEI/16/0007 (Wexwind), I addressed the question of whether Wexwind Ltd (a privately-owned windfarm company) provides public services in relation to the environment, and said:
The concept of a public service is not static, and what constitutes a public service is often a matter of social consensus. Prior to deregulation of the electricity market, the activity of electricity generation was one aspect of a single public service carried out by a vertically integrated state company, the Electricity Supply Board. Since the deregulation process resulting from Directive 96/92/EC, independent power stations also supply power to the market. Having found that the wind generation activities of Wexwind are not conducted under the control of a public authority, it is not necessary for me to make a specific finding on whether power generation is a public service relating to the environment.
In that decision I described the regulatory environment for a windfarm company. In particular, I set out how Government schemes known as Renewable Energy Feed in Tariff schemes’ (REFIT) work:
REFIT schemes employ a price support mechanism, whereby electricity suppliers are paid a guaranteed price for qualifying renewable energy purchases from electricity generators. REFIT is funded by the public service obligation (PSO) levy paid by electricity consumers. Under the REFIT scheme, renewable energy generators do not receive payments, but can benefit indirectly from the availability of REFIT support, as the purchase of renewable energy by suppliers can be contracted on more favourable terms as a result of the subsidy.
RPDAC is listed in Schedule 4 of the Act of 1999 as having a ‘power purchase agreement’ with ESB Independent Energy Ltd. In other words, RPDAC produces electricity and sells it to ESB Independent Energy Ltd. In doing so, RPDAC indirectly benefits from the associated public service obligation levy. While the levy is imposed on consumers, the public service obligation is imposed on the supplier, which is in this case ESB Independent Energy Ltd.
CRU confirmed that RPDAC is not licensed to supply electricity. My investigator put this to the appellant and he did not disagree.
It is clear that RPDAC operates as part of a system which ultimately provides electricity to the public and that such a supply is of significant public interest. However, I do not regard RPDAC as “providing a public service” within the meaning of the AIE Regulations. As I have not found that RPDAC has any public responsibilities or functions, I must therefore find that RPDAC is not a public authority of type (c). In light of this conclusion, no useful purpose would be served by considering whether RPDAC is “under the control of a body or person falling within paragraph (a) or (b)” of the definition of public authority, even in light of the appellant’s arguments that RPDAC is an emanation of the State, a special purpose vehicle, an agent of one or more public authorities, and owned by a public authority.
Having completed my review, I find that RPDAC is not a public authority within the meaning of article 3 of the AIE Regulations. Accordingly, RPDAC is not obliged to process the appellant’s request for access to environmental information and I have no further jurisdiction in relation to this matter.
A party to the appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.
Peter Tyndall, Commissioner for Environmental Information